The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing decisions made by the Workers Compensation Board ("WCB") that the worker's claim was acceptable and there was entitlement to wage loss benefits. A file review was held on November 17, 2021 to consider the employer's appeal.

Issue

1. Whether or not the claim is acceptable; and 

2. Whether or not the worker is entitled to wage loss benefits in relation to the May 16, 2021 accident.

Decision

1. That the claim is acceptable; and 

2. That the worker is entitled to wage loss benefits in relation to the May 16, 2021 accident.

Background

The worker filed a Worker Incident Report with the WCB on May 21, 2021, indicating she injured her lower/middle back at work on May 16, 2021. The worker reported that she bent down to help a client and felt a mild pain in her back. When she stood up, she "…immediately felt a shooting pain up my back and it was so bad it hurt to walk. I went to emergency and they said I had sprained my back." The worker reported the incident to the employer the same day.

The Emergency Visit Summary for the worker's attendance at the emergency department on May 16, 2021 indicated the worker presented with lower back pain and reported she felt sharp shooting pain up her back when she stood up after helping a client. It was noted that the worker appeared in distress, was walking slowly and had an antalgic gait. The attending nurse practitioner further noted, on testing, that the worker was unable to do back extension, flexion, and internal and external rotation due to pain. The worker was diagnosed with a lower back muscle sprain and it was recommended she remain off work for seven to ten days.

The worker attended an initial physiotherapy assessment on May 26, 2021, where she complained of sharp, achy low back pain, and difficulties with the activities of daily living and sitting more than ten minutes. The physiotherapist noted a positive straight leg raise test on the left and provided a diagnosis of a lumbar spine/sacroiliac joint strain/sprain and queried a disc injury. The physiotherapist recommended the worker remain off work until June 9, 2021, at which time she would be reassessed.

On May 26, 2021, the employer provided their Employer's Incident Report. The employer confirmed the worker's reporting of the incident, and noted the worker was advised to attend a meeting on May 17, 2021 to discuss modified duties, but did not attend. On May 28, 2021, the worker's claim was accepted by the WCB and payment of wage loss and medical aid benefits commenced.

By letter dated May 28, 2021, the employer advised the WCB that they had concerns and objected to acceptance of the claim and to any entitlement to wage loss benefits for lost time. The employer noted that after the workplace accident, the worker was told to seek medical treatment, then return the following day for a meeting regarding modified duties. The worker did not attend the meeting, and the employer left several messages for her. The employer further advised that they had interviewed two co-workers, who provided witness statements indicating the worker complained of back pain prior to the start of her shift on May 16, 2021. The employer noted the worker performed a variety of job duties throughout her shifts, and there was nothing about her work that would have caused her condition. The employer also questioned the severity of the worker's injury such that she had to remain off work and was unable to perform modified duties.

On June 1, 2021, the WCB spoke with the worker regarding the reported complaints of back pain prior to the start of her May 16, 2021 shift. The worker advised that her neck and shoulder blade areas were sore at the beginning of her shift, but it was like a dull ache and not too bad, and her mid and low back were fine. By letter dated June 1, 2021, the WCB advised the employer that based on all the information provided, a relationship between the worker's difficulties and an accident had been established and the worker's claim was approved.

The worker's file was reviewed by a WCB physiotherapy consultant. In a memo to file dated June 7, 2021, the consultant noted that the diagnosis from the worker's emergency department visit was a low back muscle sprain, and opined that this was similar to the diagnosis of a sprain/strain injury provided by the worker's treating physiotherapist on May 26, 2021. The WCB physiotherapy consultant also opined that total disability from a sprain/strain injury would not be supported three weeks following a sprain/strain injury. The consultant went on to advise that the worker should be capable of performing sedentary duties with a ten pound lifting maximum; that activities should be no more strenuous than activities of daily living; that the worker should be able to change positions as needed; that an initial reduction in hours could be considered, and that this should be reviewed in two weeks. Such restrictions were provided to the employer on June 7, 2021, and the employer confirmed they were able to accommodate the worker. The worker returned to work doing modified duties on June 8, 2021.

At the worker's follow-up appointment with her treating physiotherapist on June 9, 2021, the physiotherapist provided updated restrictions of eight hours per day, sedentary duties, and ability to take breaks from standing and walking as needed, to be reviewed in two weeks, and on June 10, 2021, the WCB advised the employer of these restrictions. On June 23, 2021, the worker's treating physiotherapist recommended the worker return to her full regular duties effective June 24, 2021.

On July 13, 2021, the employer's representative requested that Review Office reconsider the WCB's decision to pay wage loss benefits on the claim. The representative submitted that the worker was fit for modified duties immediately after the workplace accident, and the employer had modified duties available, but the worker failed to participate in the early return to work process. On August 9, 2021, Review Office determined that the worker was entitled to wage loss benefits. Review Office found that the worker had a loss of earning capacity to June 7, 2021, being the first date a healthcare provider determined she was capable of working modified duties.

On August 17, 2021, the employer's representative appealed the Review Office decision to the Appeal Commission and a file review was arranged for November 17, 2021.

On September 21, 2021, the employer's representative submitted a further request for reconsideration to Review Office regarding the acceptability of the worker's claim. The representative submitted that the worker did not describe an "accident", but a "…normal bodily movement which would not have been expected to result in an injury" and that the movement could have occurred anywhere and was not related to a hazard of the workplace.

On October 4, 2021, Review Office determined that the worker's claim was acceptable. Review Office noted the worker's injury to her lower back occurred while the worker was performing an activity related to her employment, and as such, arose out of and in the course of her employment.

On October 7, 2021, at the request of the employer, the additional issue of whether or not the worker's claim was acceptable was added to the employer's pending appeal to the Appeal Commission, to proceed by file review on November 17, 2021.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations under the Act, and policies of the WCB's Board of Directors.

The employer has appealed the acceptance of the worker's claim as an "accident" under the Act. What constitutes an accident is defined in subsection 1(1) of the Act, as follows:

"accident" means a chance event occasioned by a physical or natural cause; and includes: 

(a) a wilful and intentional act that is not the act of the worker, 

(b) any 

(i) event arising out of, and in the course of, employment, or 

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and 

(c) an occupational disease, 

and as a result of which a worker is injured.

The WCB's Board of Directors has established WCB Policy 44.05, Arising Out of and in the Course of Employment, which provides, in part, as follows:

Generally, an injury or illness is said to have "arisen out of employment" if the activity giving rise to it is causally connected to the employment -- that is, if it is caused by some hazard which results from the nature, conditions or obligations of the employment. To have occurred "in the course of employment," an injury or illness must have occurred within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment.

WCB Policy 44.05.20, General Premises (the "General Premises Policy"), serves as a framework for claims when the issue of "premises" is to be addressed. The Policy notes, in part, that:

Workers are eligible for compensation if they suffer a personal injury "arising out of and in the course of employment". "Arising out of the employment" is mostly concerned with whether the activity giving rise to the injury is causally connected to the employment. "In the course of employment" refers to an injury which occurs within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment. Put simply, "arising out of the employment" generally refers to what caused the injury. "In the course of employment" generally relates to "in the doing of".

The General Premises Policy further provides, in part, as follows:

7. Personal Hazards:

a. To be compensable, an injury must not only arise within the time ("when") and space ("where"), but also from an activity related to the employment. "Arising from an activity related to the employment" includes fulfilling work duties or doing something incidental to the employment. The question is whether the activity has its origins in the employment (i.e., is connected in a causal sense).

b. The WCB will make a distinction between an injury resulting from a personal cause and one resulting from the employment. Generally, an injury occurring on the employer's premises is considered to arise out of the employment unless the following apply:

i. The injury was the result of a personal action by the worker and was not caused by a: 

* a hazard of the premises; or, 

* an occurrence under the control of the employer.

ii. The worker was engaged in an activity not incidental to the employment. The injury will be considered to be the result of a personal hazard where the activity was so remote from normal employment functions that the activity and resulting injury cannot be characterized as reasonably incidental to the employment. The determination is based on whether the activity breaks the employment connection. 

(Emphasis in the Policy)

The employer has also appealed the payment of wage loss benefits to the worker.

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.

Subsection 4(2) provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, or the worker attains the age of 65 years.

Employer's Position

The employer was represented by an advocate, who provided a written submission in support of the employer's appeal.

With respect to the issue of claim acceptability, the employer's position was that the evidence did not support an accident occurred as defined by the Act or that the worker sustained an injury or disability as a result of her work duties, and the claim should not have been accepted.

The employer's advocate submitted that what the worker described in her Worker Incident Report was not an "accident", but a normal bodily movement which would not have been expected to result in an injury. In the employer's view, it is not enough for symptoms to occur at work. It was submitted that the movement in question, which consisted of simply bending down, could have occurred anywhere, at anytime, and was not related to any hazard of the workplace or any hazard associated with the worker's job duties.

It was submitted that the very fact the worker claimed such minor movements resulted in such extreme pain, at a reported level of ten out of ten, demonstrated the incident was not the primary cause of her symptoms. On the contrary, the employer believed the disability itself was pre-existing in nature and had nothing to do with the worker's job duties or the "accident" of bending over. In conclusion, it was submitted that the worker's medical condition, and certainly the degree of it, was not caused by her work duties.

With respect to the issue of wage loss benefits, the employer's position was that even if it were accepted that the worker's act of bending over met the definition of an "accident" under the Act, the evidence did not support that her disability, and in particular her time loss from work, was due to the workplace accident. It was submitted that the worker sustained a straightforward back strain and there were no clinical findings to support over three weeks time loss from work.

The employer's advocate submitted that the employer made available and offered modified duties, but the worker was not initially cooperative and demonstrated an unwillingness to cooperate in the return to work process. The advocate submitted that while the treating physiotherapist did not provide restrictions in the early reports, other medical evidence demonstrated the worker was fit for modified duties immediately, notably the emergency department report where the only restriction noted was that the worker should avoid "heavy lifting". The advocate also noted that the WCB physiotherapy consultant reviewed the claim file and disagreed with the treating physiotherapist's "feeling" that the worker could not perform modified duties which, it was submitted, showed that the treating physiotherapist's recommendations were unreasonable.

In conclusion, it was submitted that the evidence showed the worker was fit for modified duties immediately after the injury occurred, and that the employer had modified duties available which they communicated to the worker, but the worker failed to participate in the modified duty/early return to work process, and should not be entitled to wage loss benefits.

Worker's Position

The worker did not participate in the appeal.

Analysis

Issue 1: Whether or not the claim is acceptable.

For the employer's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker did not suffer an injury as a result of an accident arising out of and in the course of her employment. For the reasons that follow, the panel is unable to make that finding.

Based on the evidence, the panel is satisfied that the worker sustained a low back injury while performing her work duties on May 16, 2021. The worker reported that she bent over to help a client, and when she stood up, she immediately experienced severe low back pain. The worker consistently reported this mechanism of injury to the employer, the treating healthcare providers and the WCB.

While the employer's advocate has argued that the movement of simply bending down, as the worker described, was a normal bodily movement which could have occurred anywhere, at anytime, the evidence shows that in this case, the worker was not just at work, but was engaged in the performance of her job duties at the time the injury occurred. The worker had bent down to assist a client, and experienced a sharp pain in her back as she stood up. The panel finds that the activity of assisting the client, including the movements associated with that activity, and the resulting injury were causally connected to the worker's employment.

The evidence also shows that the injury was such that the worker was required to immediately seek medical attention at the local hospital emergency department. The treating nurse practitioner at the emergency department noted the worker was reporting "excruciating pain", diagnosed her with a lower back muscle sprain, and provided the worker with a note to be off work and rest for seven to ten days. The panel finds that the diagnosis of a low back strain or soft tissue injury was consistent with the mechanism of injury as described.

The evidence further shows that there was no delay in reporting the incident and injury to the employer, the worker having reported the incident and injury to the employer the same day. Although the employer complained that the worker did not attend a return to work meeting they had scheduled for the day after the incident occurred, or return various phone messages, evidence on file from the employer indicates that the worker eventually called back and did meet with the employer later that day, when she provided the note from the emergency department indicating she was to be off work.

The employer has argued that the claim is not acceptable as the injury was not related to any hazard of the workplace or any hazard associated with the worker's job duties. The panel notes that WCB Policy 44.05 provides that "Generally, an injury or illness is said to have 'arisen out of employment' if the activity giving rise to it is causally connected to the employment -- that is, if it is caused by some hazard which results from the nature, conditions or obligations of the employment." The panel has previously found that the activity of assisting the client and resulting injury were causally related to the worker's employment. In the panel's view, the hazard or potential for harm in this instance resulted from the nature, conditions and obligations of the employment, which included assisting the client.

The panel notes that the General Premises Policy further provides "Generally, an injury occurring on the employer's premises is considered to arise out of the employment…" While that Policy provides an exception with respect to personal causes or actions, the panel finds that the exception would not apply in this case, as the worker was acting in the course of her duties and the evidence does not support that the injury was the result of a personal action by the worker or a break in the employment connection.

In conclusion, based on the evidence which is before us and on a balance of probabilities, the panel finds that the worker suffered an injury as a result of an accident arising out of and in the course of her employment. The panel therefore determines that the worker's claim is acceptable.

The employer's appeal on this issue is dismissed.

Issue 2: Whether or not the worker is entitled to wage loss benefits in relation to the May 16, 2021 accident.

For the employer's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker did not suffer a loss of earning capacity as a result of her May 16, 2021 workplace accident. For the reasons that follow, the panel is unable to make that finding.

The panel is satisfied that the medical reports from the treating nurse practitioner and physiotherapist are consistent in their findings and recommendations. In the May 15, 2021 Emergency Visit Summary, the treating nurse practitioner noted the worker was reporting "10/10 pain at this time at rest", diagnosed the worker with a lower back muscle sprain and provided a note for work that the worker was to rest for seven to ten days. Ten days later, on May 26, 2021, the worker attended a physiotherapy assessment, where it was noted that she was still experiencing pain at a level of seven out of ten and had difficulty performing activities of daily living, and a similar diagnosis of a strain/sprain injury was provided. The treating physiotherapist recommended the worker remain off work for two more weeks, and completed a Physical Capabilities Worksheet confirming the worker was to remain off work to June 9, 2021 and be reassessed at that time.

The panel notes that information on file indicates that the employer did not officially offer modified duties for the worker until May 31, 2021. In a conversation with the WCB on that date, the employer advised the WCB of possible modified duties they had available, and the WCB forwarded the list of duties to the treating physiotherapist. On June 4, 2021, the treating physiotherapist advised the WCB that the worker was not capable of those modified duties and confirmed that the worker would be reassessed on June 9, 2021.

While the employer has argued that the review of the worker's file and opinion provided by the WCB physiotherapy consultant on June 7, 2021 indicated that the treating physiotherapist's recommendations were unreasonable, the panel is unable to accept that argument. In his June 7, 2021 memo, the WCB physiotherapy consultant confirmed the diagnosis of a sprain/strain injury. The consultant further advised that total disability was not supported at that time, being three weeks following a sprain/strain injury, and provided restrictions.

The panel is satisfied that the WCB physiotherapy consultant's opinion is consistent with the previous medical reports. The panel notes that the consultant does not indicate that the worker was fit for work earlier, and the treating physiotherapist had repeatedly indicated that the worker was to be reassessed on June 9, 2021, being two days after the consultant's opinion was provided. The physiotherapist's subsequent report of June 9, 2021 noted that the worker was capable of modified duties and outlined restrictions, which were consistent with what the WCB physiotherapy consultant had outlined. Based on the available medical evidence, the panel accepts that the worker was not capable of returning to work prior to June 8, 2021.

The panel notes that information on file shows that the worker returned to work on modified duties on June 8, 2021, and to full regular duties on June 23, 2021. In the circumstances, the panel is satisfied that the return to work on June 8, 2021 on modified duties, followed by a return to work on full duties two weeks later, was appropriate and consistent with the nature of the worker's injury.

In conclusion, based on the evidence and on a balance of probabilities, the panel finds, on a balance of probabilities, that the worker suffered a loss of earning capacity as a result of her May 16, 2021 workplace accident. The panel therefore finds that the worker is entitled to wage loss benefits in relation to that accident.

The employer's appeal on this issue is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 14th day of January, 2022